Custom, Excise & Service Tax Tribunal
K.P. Abdul Majeed vs The Commissioner Of Customs on 7 May, 2012
THE CUSTOMS EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, SOUTH ZONAL BENCH, WTC BUILDING, FKCCI COMPLEX, K.G. ROAD, BANGALORE Date of hearing: 07.05.2012 Date of decision: 07.05.2012 Appeal No. C/238/1994 (Arising out of order-in-original No: S.14/46/93 Pr.Cus./P.R.13/94 Pr.Cus dated 30/03/1994 passed by the Collector of Customs, Cochin) For approval and signature Honble Mr. P.G. Chacko, Member (Judicial) Honble Mr. M. Veeraiyan, Member(Technical) 1. Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules 1982? 2. Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules 1982 for publication in any authoritative report or not? 3. Whether Their Lordships wish to see the fair copy of the Order 4. Whether Order is to be circulated to the Departmental authorities K.P. Abdul Majeed .Appellant Vs. The Commissioner of Customs, Respondent
Cochin Present for the Appellant : Mr. S. Mahesh, Adv Present for the Respondent : Mr.Ravi Chandran, A.R. Coram:
Honble Mr. P.G. Chacko, Member (Judicial) Honble Mr. M. Veeraiyan, Member(Technical) ORDER No______________________ [Order perm. Veeraiyan] This is an appeal against the order of the Commissioner No. S.14/46/93 Pr.Cus./P.R.13/94 Pr.Cus dated 30/3/1994.
2. Heard both sides.
3. The relevant facts, in brief, are as follows:
a) On the basis of information, the officers of DRI intercepted Vehicle No. KEB 4899 driven by one Shri Mohammed Ali at about 2.30 A.M. at about 2 Kms away from Edapalli of the National Highway 47 and recovered 140 Nos. of silver bricks with foreign markings and in follow-up, they recovered 115 Nos. of silver bricks from Vehicle (DCM Toyota pickup van) No. KEB 9819 driven by Shri Shoukath Ali (brother of Shri Mohammed Ali) and another 25 bricks from Tempo No. KL 13-9540 whose driver was one Shri K.P. Rajesh. Thus, totally 280 Nos. of silver bricks totally weighing 9332.418 Kgs, and valued at that time as Rs. 7,35,25,000/- were seized.
b) According to the investigation, it transpired that Shri Abdul Majeed, Hazi M. Abdulla Abdul Rahiman and Ismail were actively involved in the smuggling of silver bricks and that they were the organizers to receive, transport and distribute the silver bricks.
c) Involvement of Shri Abdul Majeed was first revealed by Shri K.P. Rajesh, driver of Tempo No. KL 13-9540 in his statement dated 14/10/2000. He inter alia stated that while they were waiting to take delivery of the silver bars, he was told by Shri Ismail that Shri Majeeds father had expired and hence Majeed had to be taken to Calicut from Ernakulam and dropped in his house. Accordingly, he took Shri Majeed in a Maruthi car after giving key of the Tempo to Ismail; that he reached the house where Majeeds father had expired and later on 13th afternoon he returned to Ernakulam in another car.
d) The Maruthi Vehicle KRN 1904 in which Shri Majeed travelled was found abandoned from which certain documents were recovered.
e) Shri K.P. Abdul Majeed appeared before the Assistant Director DRI on 31/10/1992 and gave his statement. The gist of the statement is as follows:
In early September 1992, one of his friends Shri Abdulla Haji of Muttumthala, Kanhangad came to his house and sought his help in landing of contraband silver in Kerala coast for which he agreed; that Haji told him about 5 crores worth of silver are to be landed for which he will be given Rs. 1 lakh if he helped; that accordingly he and Haji went to Bombay in early September and met a person whom Haji told is the leader; that they discussed about the landing of silver; that he does not know the name and address of the person; that they came back form Bombay; that on 4th October, 1992 he took a room in his name at Paulson Hotel, Ernakulam; that at that time Abdulla Haji and one K.V. Ismail, a common friend of himself and Abdulla Haji went to arrange for vehicles and workers for silver smuggling; that he was asked to come to Ernakulam to inspect a place in Alleppey Dist for silver landing; that since Haji and Ismail did not reach at Paulson Hotel he vacated and went to Periyar Hotel, Alwaye where Haji and Ismail have taken rooms; that he went along with Haji and Ismail to a house on the bank of Vembanad Kayal near Aroor bridge where it was decided to land the silver coming from the sea; that the said house has got convenience for vehicles to come for transporting silver without the knowledge of anybody; that it was decided to land the silver reaching at the outer sea from Gulf after transshipment to a fishing trawler from the smugglers launch at the above said residence at Aroor on 13.10.1992; that knowing about the death of his father on 11.10.92 he came immediately in a car driven by one Rajesh to his fathers house at Panniyankara in Calicut; that on 13.10.92 Rajesh and himself went back to Ernakulam and straight to the house where silver was to be landed; that Ismail who was present there at that time told him that the big carriers to transport the landed silver to Bombay had not reached; that he and Ismail went in a White Maruti Car bearing Regn. No. KRN 1904 towards Ernakulam looking for the carriers and on not seeing the same they came back; that Ismail told him on the way that the goods as planned reached Aroor and were loaded in the vehicle but due to some suspicion have not started for the destination; that on the way noticing a car following their car, they sped away, then went towards the Aroor side and on seeing them being chased they sped towards Fort Cochin side and abandoned the Maruti Car at Palluruthy and went to Hotel Abad Plaza where he saw Abdulla Haji coming out disturbed; that he knew that the silver and the vehicles were seized and immediately himself and Ismail went to Calicut and later went underground to Madras; that he understood that the seized silver bars were the same which they had intended to land that after that till date he had not seen Haji and Ismail and gave the description of Abdulla Haji. He also identified the photograph of K.V. Ismail.
f) Shri K.P. Abdul Majeed sent a letter dated 2/11/92 addressed to the Collector, Central Excise Cochin denying his involvement in the smuggling/transport of smuggled silver. On the same date Shri K.P. Rajesh and Shir M.L. Kunjumon who implicated Shri K.P. Abdul Mazid also sent retraction letters addressed to the Collector.
g) The contents of the letter dated 2/11/1992 by Shri K.P. Abdul Majeed are reproduced below:
On 31-10-92 Saturday while I was sitting in my residence some Customs Officers searched my residence and nothing could be recovered. The above said officers forcibly took me to the DRI office and enquired about some silver smuggling. On 12-10-92 my father expired due to heart attack. After that I have not gone out of Kozhikode. They asked me regarding some smuggling which took place somewhere in Alleppey Dist on 13.10.1992. I informed the said officers about the truth that I am not aware of the above said smuggling and at that time they threatened me and using force recorded a false statement from me.
It is against truth and illegal in recording the statement saying that I am connected in the silver smuggling which took place on 13-10-92. It is also against fact that I was involved and helping the smugglers of the above said silver smuggling. I am herewith informing you that I was not involved directly or indirectly in the above said smuggling. The statement recorded from me was not given out of my free will but was written under duress and threat. I deny the charge levelled against me. As such, I request that considering the above facts further action may be taken.
h) Commissioner on the basis of show-cause notice issued to several persons including Shri K.P. Abdul Majeed confiscated the silver absolutely. He also confiscated the vehicles used for transporting the smuggled silver and also Vessel Simla and two country crafts absolutely. He imposed penalties on various persons and in particular a penalty of Rs 20,00,000/- on Shri K.P. Abdul Majeed.
i) The present appeal challenges the penalty imposed on him.
4. The learned advocate for the appellant submits that there is no evidence except the statement of the appellant himself and Shri Rajesh the driver. He also submits that statement of the co-accused cannot be taken as evidence to impose penalty as held in the case of M.D Gauhar Ali Vs Commissioner of Customs Patna [2004(178)E.L.T.476 (Tri-Kolkata)] and Jaswinder Singh Vs. Commissioner of Customs, New Delhi [1996(83)E.L.T. 175 (Tri)]. He also submits that for imposing penalty there should be direct evidence and that it is unsafe to convict a person based on his retracted confession statement as held in State of Maharashtra Vs. Sayed Mohammed Hashim Al Musavi [1991(51)E.L.T. 41 (Bom). He further submits that the initial burden to prove the involvement of the appellant in the smuggling activities is on the department as held in the case of Ramprakash Vs. Collector of Customs New Delhi [2003(161)E.L.T.882 (Tri-Del). Further, he submits that both the statements stand retracted by writing letters to the Collector on 2/11/1992. As the statement given by the appellant is not voluntary, the same should not be relied upon to sustain the penalty on him.
5. Learned Superintendent (A.R.) submits that the involvement of Shri Abdul Majeed in the smuggling activities is clearly proved by the admission statement of Shri Abdul Majeed himself and corroborated by the statement of Shri Rajesh and the other persons like hotel receptionist.
6. We have carefully considered the submissions from both sides and perused the relevant records. Huge quantity of smuggled silver bricks of foreign origin stands confiscated by the impugned order along with vehicles, vessel and country crafts used for smuggling/transport of such smuggled goods. In the present proceedings, the issue to be considered is whether the appellant is involved in the smuggling activities relating to above confiscated silver. His name was initially mentioned by Shri K.P. Rajesh in his statement dated 14/10/92. The appellant himself made detailed confession about his role in the entire activities relating to smuggling. He named Shri Abdul Haji as having sought his help in landing of contraband silver in Kerala coast for a consideration of Rs 1 lakh. He has stated that he along with Haji went to Bombay and met the leader of the gang. He mentioned about coming back to Ernakulam and taking room in his name on 4th October 1992; making arrangement for vehicles and workers for silver smuggling; his vacating the room in Paulson Hotel and going to Hotel Periyar Alwaye where Haji and Ismail have taken rooms. He also identified the house on the bank of Vembanad Kayal where the silver coming from Gulf was to be landed after transshipment to a fishing trawler. He also mentioned the death of his father on 11/10/92 and rushing to Calicut in a white maruthi car driven by Shri Rajesh and then returning back to the landing spot. These submissions stand corroborated by the statements of Shri Rajesh. Further, the details furnished regarding stay in the hotels stand corroborated from the evidence given by employees of the hotel like the receptionist by identifying the photograph of Shri K.P. Abdul Majeed. The appellants confessions thus stand corroborated not only by co-accused but also by other persons and other evidences as found from the hotel registers.
7.1. The claim that appellant made a retraction in a letter addressed to the Collector has been considered by us. At the outset, we find that the appellant was arrested on 31/10/92 and produced before the Addl. Chief Judicial Magistrate and he did not make any complaints of ill-treatment before the said Magistrate.
7.2. Regarding the so-called retraction letter dated 2/11/92 addressed to the Collector Central Excise Cochin, we find that the seizure, follow-up investigation was being done by the officials of DRI. The appellant gave confessional statement under Section 108 before the Assistant Director, DRI Calicut. A retraction has to be necessarily addressed to the officer to whom the statement was given. The letter addressed to the Collector of Central Excise has to be treated only as a representation or a complaint and not a valid retraction.
7.3. Even otherwise, the letter dated 2/11/92 does not contain any retraction of relevant facts mentioned in his statement given on 31/10/92 like his going to Bombay for meeting the leader of the gang, planning the entire operations relating to landing and transporting, staying in a room in Paulson hotel and later going to Periyar hotel Alwaye for meeting the co-organizers and the like. Therefore, the letter addressed to Collector Central Excise does not in any way reduce the evidentiary value of his confessional statement which stands corroborated by other evidence in the form of statements of Rajesh and also the hotel receptionist.
8. In view of the above, we hold that on the yardstick of preponderance of probability, the involvement of the appellant in the landing of silver and arranging for transport are proved and penalty on him is warranted. However, it was submitted that, in respect of one of the co-noticees, Shri M.L. Kunjumon, the penalty of Rs 5 lakhs imposed on him was reduced to Rs 1 lakh by the Tribunal vide their Final Order No. C/251/1994 dated 29/4/2008. As an alternative plea, similar leniency was sought for on the amount of penalty.
9. Taking the entire facts and circumstances into account, we dispose of the appeal by this appellant by reducing the penalty from Rs. 20,00,000/- (Rupees twenty lakhs only) to Rs. 5,00,000/- (Rupees five lakhs only). Thus the appeal is allowed partly as above.
10. We clarify that we have dealt with the role of the appellant in the present appeal and our narration of certain events and details involving other co-noticees in deciding the case against the present appellant cannot be treated as our findings in respect of the said persons whose appeals if any, were not before us.
(Pronounced and dictated in open Court) (M. VEERAIYAN) Member (Technical) (P. G. CHACKO) Member (Judicial) /pnr/ 10